June 29, 2018

by Leslie M. Kroeger, Adam J. Langino, and Diana L. Martin

Introduction
Florida’s Workers’ Compensation Act sets up a self-executing system under which an employee injured in a workplace accident can receive medical care and lost wages without filing a civil lawsuit.  This system, however, does not provide all the remedies that would be necessary to make an injured worker whole.  For instance, noneconomic damages, such as pain and suffereing, are not available under Florida’s Workers’ Compensation Act. And, the injured worker is often beholden to the employer’s workers’ compensation carrier when seeking medical treatment as the carrier may not agree with such treatment or find it causally related to the workplace accident. While the employee can seek relief through the administrative workers’ compensation system, in some cases greater relief can be found outside the system. One such situation is when a product is a cause of the worker’s injury, which provides an avenue for the employee to recover in a civil product liability lawsuit.  As access to circuit court may be the only means by which the injured worker can make a full recovery of damages, it is important to be aware of opportunities that will open the courthouse doors to injured workers. For this reason, this article focuses on upcoming trends in product liability lawsuits and practice tips for making successful claims on behalf of injured workers outside the workers’ compensation system.

Trending workplace product claims

Saws 
There are many different types of saws, e.g., table, horizontal, miter, all of which are common on many construction sites. Accidents are not uncommon. For instance, researchers estimate over 30,000 table saw injuries alone occur annually.  From a product liability aspect, table saws have been alleged to be defectively designed for not incorporating flesh-detection safety technology, such as something like Sawstop, which is a safety system that stops a saw within 5 milliseconds of the blades contact with human flesh.  Horizontal band saws have been alleged to be defectively designed for not incorporating vises that require two hand-controls to operate,   and for not offering pedestal controls to allow the saws to be operated from a remote, safe position.  Alternatively miter saws have been alleged to be defectively designed for not incorporating lock washers, cotter pins, c-clips, or other locking mechanisms to keep the saw arm in place when not in use. 

Ladders
Among workers, approximately 20% of fall injuries involve ladders.  Among construction workers, an estimated 81% of fall injuries treated in U.S. emergency departments involve a ladder. From a product liability perspective, ladders have been found defective for several reasons. For instance, from a warning or instructions perspective, ladders have been found defective for not holding an as advertised weight.  These types of ladders fail for larger men or women, even though their body weight does not exceed any maximum weight requirement. From a manufacturing perspective, ladders have been found defective for having out of specification rivets. The rivets are an integral part of the support structure of a ladder and even a minimal misplacement can lead to fatigue fracture or failure.  From a design perspective, ladders have been found defective for not including wider, thicker legs or longer gussets, both of which affect stability. 

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Conclusion
As Florida’s Workers’ Compensation Act limits the damages available to injured workers, it is important to look for other avenues that may enable an injured worker to recover sufficient damages in order to become whole. Because the Act does not preclude an employee, or his or her family, from seeking restitution from a third party, counsel should determine whether the employee’s injuries were caused by a product and whether a civil product liability action might enable the employee to make a greater recovery than a claim merely under Florida’s Workers’ Compensation Act.

The full article can be accessed here.

If you have a potential claim against a workers’ compensation insurance carrier, please contact Leslie M. Kroeger, Adam J. Langino, Diana L. Martin  or email a member of our Managed Care Abuse Team.